BILL NUMBER: SB 2165	CHAPTERED  09/28/00

	CHAPTER   807
	FILED WITH SECRETARY OF STATE   SEPTEMBER 28, 2000
	APPROVED BY GOVERNOR   SEPTEMBER 28, 2000
	PASSED THE SENATE   AUGUST 31, 2000
	PASSED THE ASSEMBLY   AUGUST 30, 2000
	AMENDED IN ASSEMBLY   AUGUST 29, 2000
	AMENDED IN ASSEMBLY   AUGUST 25, 2000
	AMENDED IN ASSEMBLY   JUNE 26, 2000
	AMENDED IN SENATE   MAY 8, 2000

INTRODUCED BY   Senator Sher

                        FEBRUARY 25, 2000

   An act to amend Sections 13263.3 and 13385 of the Water Code,
relating to water.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 2165, Sher.  Waste discharge requirements.
   (1) The Porter-Cologne Water Quality Control Act prescribes
certain civil penalties, including specified mandatory minimum
penalties, for violations of specified waste discharge requirements
set forth in that act or the Clean Water Act.
   This bill would revise these provisions.  The bill would prescribe
circumstances under which the mandatory minimum penalty requirements
would not apply.  Certain exceptions would remain in effect only
until January 1, 2002.  The bill would require the assessment of a
mandatory minimum penalty of $3,000 for the first serious violation,
as defined, and each additional serious violation in any period of 6
consecutive months, as defined, except that if no serious violation
has occurred in the prior 6 months, the bill would authorize the
State Water Resources Control Board or a regional water quality
control board, in lieu of assessing the penalty applicable to the
first serious violation, to require the discharger to spend an amount
equal to the penalty for a supplemental environmental project or to
develop a pollution prevention plan.
   The bill would also require the assessment of a mandatory minimum
penalty of $3,000 for 4 or more violations of prescribed waste
discharge requirements that occur in any period of 6 consecutive
months, except as specified.
   (2) The act authorizes the state board, a regional board, or a
publicly owned treatment works to require a discharger to complete
and implement a pollution prevention plan if certain requirements are
met.
   This bill would extend that authority to those public entities if
a discharger is subject to a cease and desist order or a time
schedule order.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 13263.3 of the Water Code is amended to read:
   13263.3.  (a) The Legislature finds and declares that pollution
prevention should be the first step in a hierarchy for reducing
pollution and managing wastes, and to achieve environmental
stewardship for society.  The Legislature also finds and declares
that pollution prevention is necessary to support the federal goal of
zero discharge of pollutants into navigable waters.
   (b) (1) For the purposes of this section, "pollution prevention"
means any action that causes a net reduction in the use or generation
of a hazardous substance or other pollutant that is discharged into
water and includes any of the following:
   (A) "Input change," which means a change in raw materials or
feedstocks used in a production process or operation so as to reduce,
avoid, or eliminate the generation of pollutants discharged in
wastewater.
   (B) "Operational improvement," which means improved site
management so as to reduce, avoid, or eliminate the generation of
pollutants discharged in wastewater.
   (C) "Production process change," which means a change in a
process, method, or technique that is used to produce a product or a
desired result, including the return of materials or their components
for reuse within the existing processes or operations, so as to
reduce, avoid, or eliminate the generation of pollutants discharged
in wastewater.
   (D) "Product reformulation," which means changes in design,
composition, or specifications of end products, including product
substitution, so as to reduce, avoid, or eliminate the generation of
problem pollutants discharged in wastewater.
   (2) For the purposes of this section, "pollution prevention" does
not include actions that merely shift a pollutant in wastewater from
one environmental medium to another environmental medium, unless
clear environmental benefits of such an approach are identified to
the satisfaction of the state board, the regional board, or POTW.
   (c) For the purposes of this section, "discharger" means any
entity required to obtain a national pollutant discharge elimination
system (NPDES) permit pursuant to the Clean Water Act (33 U.S.C. Sec.
1251 et seq.), or any entity subject to the pretreatment program as
defined in Part 403 (commencing with Section 403.1) of Subchapter N
of Chapter 1 of Part 403 of Title 40 of the Code of Federal
Regulations.
   (d) (1) The state board, a regional board, or a POTW may require a
discharger subject to its jurisdiction to complete and implement a
pollution prevention plan if any of the following apply:
   (A) A discharger is determined by the state board to be a chronic
violator, and the state board, a regional board, or the POTW
determines that pollution prevention could assist in achieving
compliance.
   (B) The discharger significantly contributes, or has the potential
to significantly contribute, to the creation of a toxic hot spot as
defined in Section 13391.5.
   (C) The state board, a regional board, or a POTW determines
pollution prevention is necessary to achieve a water quality
objective.
   (D) The discharger is subject to a cease and desist order issued
pursuant to Section 13301 or a time schedule order issued pursuant to
Section 13300 or 13308.
   (2) A pollution prevention plan required of a discharger other
than a POTW pursuant to paragraph (1) shall include all of the
following:
   (A) An analysis of one or more of the pollutants, as directed by
the state board, a regional board, or a POTW, that the facility
discharges into water or introduces into POTWs, a description of the
sources of the pollutants, and a comprehensive review of the
processes used by the discharger that result in the generation and
discharge of the pollutants.
   (B) An analysis of the potential for pollution prevention to
reduce the generation of the pollutants, including the application of
innovative and alternative technologies and any adverse
environmental impacts resulting from the use of those methods.
   (C) A detailed description of the tasks and time schedules
required to investigate and implement various elements of pollution
prevention techniques.
   (D) A statement of the discharger's pollution prevention goals and
strategies, including priorities for short-term and long-term
action.
   (E) A description of the discharger's existing pollution
prevention methods.
   (F) A statement that the discharger's existing and planned
pollution prevention strategies do not constitute cross media
pollution transfers unless clear environmental benefits of such an
approach are identified to the satisfaction of the state board, the
regional board, or the POTW, and information that supports that
statement.
   (G) Proof of compliance with the Hazardous Waste Source Reduction
and Management Review Act of 1989 (Article 11.9 (commencing with
Section 25244.12) of Chapter 6.5 of Division 20 of the Health and
Safety Code) if the discharger is also subject to that act.
   (H) An analysis, to the extent feasible, of the relative costs and
benefits of the possible pollution prevention activities.
   (I) A specification of, and rationale for, the technically
feasible and economically practicable pollution prevention measures
selected by the discharger for implementation.
   (3) The state board or a regional board may require a POTW to
complete and implement a pollution prevention plan that includes all
of the following:
   (A) An estimate of all of the sources of a pollutant contributing,
or potentially contributing, to the loading of that pollutant in the
treatment plant influent.
   (B) An analysis of the methods that could be used to prevent the
discharge of the pollutants into the POTW, including application of
local limits to industrial or commercial dischargers regarding
pollution prevention techniques, public education and outreach, or
other innovative and alternative approaches to reduce discharges of
the pollutant to the POTW.  The analysis also shall identify sources,
or potential sources, not within the ability or authority of the
POTW to control, such as pollutants in the potable water supply,
airborne pollutants, pharmaceuticals, or pesticides, and estimate the
magnitude of those sources, to the extent feasible.
   (C) An estimate of load reductions that may be attained through
the methods identified in subparagraph (B).
   (D) A plan for monitoring the results of the pollution prevention
program.
   (E) A description of the tasks, cost, and time required to
investigate and implement various elements in the pollution
prevention plan.
   (F) A statement of the POTW's pollution prevention goals and
strategies, including priorities for short-term and long-term action,
and a description of the POTW's intended pollution prevention
activities for the immediate future.
   (G) A description of the POTW's existing pollution prevention
programs.
   (H) An analysis, to the extent feasible, of any adverse
environmental impacts, including cross media impacts or substitute
chemicals, that may result from the implementation of the pollution
prevention program.
   (I) An analysis, to the extent feasible, of the costs and benefits
that may be incurred to implement the pollution prevention program.

   (e) The state board, a regional board, or a POTW may require a
discharger subject to this section to comply with the pollution
prevention plan developed by the discharger after providing an
opportunity for comment at a public proceeding with regard to that
plan.
   (f) The state board, regional boards, and POTWs shall make the
pollution prevention plans available for public review, except to the
extent that information is classified as confidential because it is
a trade secret.  Trade secret information shall be set forth in an
appendix that is not available to the public.
   (g) The state board or regional board may assess civil liability
pursuant to paragraph (1) of subdivision (c) of Section 13385 against
a discharger for failure to complete a pollution prevention plan
required by the state board or a regional board, for submitting a
plan that does not comply with the act, or for not implementing a
plan, unless the POTW has assessed penalties for the same action.
   (h) A POTW may assess civil penalties and civil administrative
penalties pursuant to Sections 54740, 54740.5, and 54740.6 of the
Government Code against a discharger for failure to complete a
pollution prevention plan when required by the POTW, for submitting a
plan that does not comply with the act, or for not implementing a
plan, unless the state board or a regional board has assessed
penalties for the same action.
   (i) A discharger may change its pollution prevention plan,
including withdrawing from a pollution prevention measure required by
the state board, a regional board, or a POTW, if the discharger
determines that the measure will have a negative impact on product
quality, the safe operation of the facility, or the environmental
aspects of the facility's operation, or the discharger determines
that the measure is economically impracticable or technologically
infeasible.  Where practicable and feasible, the discharger shall
replace the withdrawn measure with a measure that will likely achieve
similar pollution prevention objectives.  A measure may be withdrawn
pursuant to this subdivision only with the approval of the executive
officer of the state board or the regional board, or the POTW.
   (j) The state board shall adopt a sample format to be used by
dischargers for completing the plan required by this section.  The
sample format shall address all of the factors the discharger is
required to include in the plan.  The board may include any other
factors determined by the board to be necessary to carry out this
section.  The adoption of the sample format pursuant to this section
is not subject to Chapter 3.5 (commencing with Section 11340) of Part
1 of Division 3 of Title 2 of the Government Code.
   (k) The state board, a regional board, or POTW may not include a
pollution prevention plan in any waste discharge requirements or
other permit issued by that agency.
   (l) This section prevails over Section 13263.3, as added to the
Water Code by Assembly Bill 1104 of the 1999-2000 Regular Session.
  SEC. 2.  Section 13385 of the Water Code is amended to read:
   13385.  (a) Any person who violates any of the following shall be
liable civilly in accordance with this section:
   (1) Section 13375 or 13376.
   (2) Any waste discharge requirements or dredged and fill material
permit.
   (3) Any requirements established pursuant to Section 13383.
   (4) Any order or prohibition issued pursuant to Section 13243 or
Article 1 (commencing with Section 13300) of Chapter 5, if the
activity subject to the order or prohibition is subject to regulation
under this chapter.
   (5) Any requirements of Section 301, 302, 306, 307, 308, 318, or
405 of the Federal Water Pollution Control Act, as amended.
   (6) Any requirement imposed in a pretreatment program approved
pursuant to waste discharge requirements issued under Section 13377
or approved pursuant to a permit issued by the administrator.
   (b) Civil liability may be imposed by the superior court in an
amount not to exceed the sum of both of the following:
   (1) Twenty-five thousand dollars ($25,000) for each day in which
the violation occurs.
   (2) Where there is a discharge, any portion of which is not
susceptible to cleanup or is not cleaned up, and the volume
discharged but not cleaned up exceeds 1,000 gallons, an additional
liability not to exceed twenty-five dollars ($25)  multiplied by the
number of gallons by which the volume discharged but not cleaned up
exceeds 1,000 gallons.
   The Attorney General, upon request of a regional board or the
state board, shall petition the superior court to impose the
liability.
   (c) Civil liability may be imposed administratively by the state
board or a regional board pursuant to Article 2.5 (commencing with
Section 13323) of Chapter 5 in an amount not to exceed the sum of
both of the following:
   (1) Ten thousand dollars ($10,000) for each day in which the
violation occurs.
   (2) Where there is a discharge, any portion of which is not
susceptible to cleanup or is not cleaned up, and the volume
discharged but not cleaned up exceeds 1,000 gallons, an additional
liability not to exceed ten dollars ($10) multiplied by the number of
gallons by which the volume discharged but not cleaned up exceeds
1,000 gallons.
   (d) For purposes of subdivisions (b) and (c), the term "discharge"
includes any discharge to navigable waters of the United States, any
introduction of pollutants into a publicly owned treatment works, or
any use or disposal of sewage sludge.
   (e) In determining the amount of any liability imposed under this
section, the regional board, the state board, or the superior court,
as the case may be, shall take into account the nature,
circumstances, extent, and gravity of the violation, and, with
respect to the violator, the ability to pay, any prior history of
violations, the degree of culpability, economic benefit or savings,
if any, resulting from the violation, and other matters that justice
may require.  At a minimum, liability shall be assessed at a level
that recovers the economic benefits, if any, derived from the acts
that constitute the violation.
   (f) For purposes of this section, a single operational upset that
leads to simultaneous violations of more than one pollutant parameter
shall be treated as a single violation.
   (g) Remedies under this section are in addition to, and do not
supersede or limit, any other remedies, civil or criminal except that
no liability shall be recoverable under Section 13261, 13265, 13268,
or 13350 for violations for which liability is recovered under this
section.
   (h) (1) Notwithstanding any other provision of this division, and
except as provided in subdivisions (j) and (k) a mandatory minimum
penalty of three thousand dollars ($3,000) shall be assessed for the
first serious violation and each additional serious violation in any
period of six consecutive months, except that if no serious violation
has occurred in the prior six months, the state board or regional
board, in lieu of assessing the penalty applicable to the first
serious violation, may elect to require the discharger to spend an
amount equal to the penalty for a supplemental environmental project
in accordance with the enforcement policy of the state board and any
applicable guidance document, or to develop a pollution prevention
plan.  If the state board or regional board elects to require the
discharger to carry out a supplemental environmental project or
develop a pollution prevention plan pursuant to this subdivision, a
mandatory minimum penalty of three thousand dollars ($3,000) shall be
assessed for each additional serious violation in the six-month
period that began with the violation that was waived in lieu of the
supplemental environmental project or pollution prevention plan.
   (2) For the purposes of this section, the following terms have the
following meanings:
   (A) A "serious violation" means any waste discharge that exceeds
the effluent limitations contained in the applicable waste discharge
requirements for a Group II pollutant, as specified in Appendix A to
Section 123.45 of Title 40 of the Code of Federal Regulations, by 20
percent or more or for a Group I pollutant, as specified in Appendix
A to Section 123.45 of Title 40 of the Code of Federal Regulations,
by 40 percent or more.
   (B) A "supplemental environmental project" means an
environmentally beneficial project that a person agrees to undertake,
with the approval of the regional board, that would not be
undertaken in the absence of an enforcement action under Section
13385.
   (C) A "period of six consecutive months" means the period
beginning on the day following the date on which a serious violation
or one of the violations described in subdivision (i) occurs and
ending 180 days after that date.
   (i) Notwithstanding any other provision of this division, and
except as provided in subdivisions (j) and (k) a mandatory minimum
penalty of three thousand dollars ($3,000) shall be assessed for each
violation whenever the person does any of the following four or more
times in any period of six consecutive months, except that the
requirement to assess the mandatory minimum penalty shall not be
applicable to the first three violations:
   (1) Exceeds a waste discharge requirement effluent limitation.
   (2) Fails to file a report pursuant to Section 13260.
   (3) Files an incomplete report pursuant to Section 13260.
   (4) Exceeds a toxicity discharge limitation contained in the
applicable waste discharge requirements where the waste discharge
requirements do not contain pollutant-specific effluent limitations
for toxic pollutants.
   (j) Subdivisions (h) and (i) do not apply to any of the following:

   (1) A violation caused by one or any combination of the following:

   (A) An act of war.
   (B) An unanticipated, grave natural disaster or other natural
phenomenon of an exceptional, inevitable, and irresistible character,
the effects of which could not have been prevented or avoided by the
exercise of due care or foresight.
   (C) An intentional act of a third party, the effects of which
could not have been prevented or avoided by the exercise of due care
or foresight.
   (D) A bypass of a treatment facility located in the County of Los
Angeles during the 2001 calendar year if the applicable waste
discharge requirements incorporate a provision for the bypass, and
that bypass meets the conditions set forth in Section 122.41 (m)(4)
of Title 40 of the Code of Federal Regulations and any more stringent
conditions incorporated into the waste discharge requirements and
the bypass has been approved by the regional board as meeting those
conditions.
   (2) (A) Except as provided in subparagraph (B), a  violation of an
effluent limitation where the waste discharge is in compliance with
either a cease and desist order issued pursuant to Section 13301 or a
time schedule order issued pursuant to Section 13300, if all of the
following requirements are met:
   (i) The cease and desist order or time schedule order is issued
after January 1, 1995, but not later than  July 1, 2000, specifies
the actions that the discharger is required to take in order to
correct the violations that would otherwise be subject to
subdivisions (h) and (i), and the date by which compliance is
required to be achieved and, if the final date by which compliance is
required to be achieved is later than one year from the effective
date of the cease and desist order or time schedule order, specifies
the interim requirements by which progress toward compliance will be
measured and the date by which the discharger will be in compliance
with each interim requirement.
   (ii) The discharger has prepared and is implementing in a timely
and proper manner, or is required by the regional board to prepare
and implement, a pollution prevention plan that meets the
requirements of Section 13263.3.
   (iii) The discharger demonstrates that it has carried out all
reasonable and immediately feasible actions to reduce noncompliance
with the waste discharge requirements applicable to the waste
discharge and the executive officer of the regional board concurs
with the demonstration.
   (B) Subdivisions (h) and (i) shall become applicable to a waste
discharge on the date the waste discharge requirements applicable to
the waste discharge are are revised and reissued pursuant to Section
13380, unless the regional board does all of the following on or
before that date:
   (i) Modifies the requirements of the cease and desist order or
time schedule order as may be necessary to make it fully consistent
with the reissued waste discharge requirements.
   (ii) Establishes in the modified cease and desist order or time
schedule order a date by which full compliance with the reissued
waste discharge requirements shall be achieved.  For the purposes of
this subdivision, the regional board may not establish this date
later than five years from the date the waste discharge requirements
were required to be reviewed pursuant to Section 13380.  If the
reissued waste discharge requirements do not add new effluent
limitations or do not include effluent limitations that are more
stringent than those in the original waste discharge requirements,
the date shall be the same as the final date for compliance in the
original cease and desist order or time schedule order or five years
from the date that the waste discharge requirements were required to
be reviewed pursuant to Section 13380, whichever is earlier.
   (iii) Determines that the pollution prevention plan required by
clause (ii) of subparagraph (A) is in compliance with the
requirements of Section 13263.3 and that the discharger is
implementing the pollution prevention plan in a timely and proper
manner.
   (3) A violation of an effluent limitation where the waste
discharge is in compliance with either a cease and desist order
issued pursuant to Section 13301 or a time schedule order issued
pursuant to Section 13300, if all of the following requirements are
met:
   (A) The cease and desist order or time schedule order is issued on
or after July 1, 2000, and specifies the actions that the discharger
is required to take in order to correct the violations that would
otherwise be subject to subdivisions (h) and (i).
   (B) The regional board finds that, for one of the following
reasons, the discharger is not able to consistently comply with one
or more of the effluent limitations established in the waste
discharge requirements applicable to the waste discharge:
   (i) The effluent limitation is a new, more stringent, or modified
regulatory requirement that has become applicable to the waste
discharge after the effective date of the waste discharge
requirements and after July 1, 2000, new or modified control measures
are necessary in order to comply with the effluent limitation, and
the new or modified control measures cannot be designed, installed,
and put into operation within 30 calendar days.
   (ii) New methods for detecting or measuring a pollutant in the
waste discharge demonstrate that new or modified control measures are
necessary in order to comply with the effluent limitation and the
new or modified control measures cannot be designed, installed, and
put into operation within 30 calendar days.
   (iii) Unanticipated changes in the quality of the municipal or
industrial water supply available to the discharger are the cause of
unavoidable changes in the composition of the waste discharge, the
changes in the composition of the waste discharge are the cause of
the inability to comply with the effluent limitation, no alternative
water supply is reasonably available to the discharger, and new or
modified measures to control the composition of the waste discharge
cannot be designed, installed, and put into operation within 30
calendar days.
   (C) The regional board establishes a time schedule for bringing
the waste discharge into compliance with the effluent limitation that
is as short as possible, taking into account the technological,
operational, and economic factors that affect the design,
development, and implementation of the control measures that are
necessary to comply with the effluent limitation.  For the purposes
of this subdivision, the time schedule may not exceed five years in
length. If the time schedule exceeds one year from the effective date
of the order, the schedule shall include interim requirements and
the dates for their achievement.  The interim requirements shall
include both of the following:
   (i) Effluent limitations for the pollutant or pollutants of
concern.
   (ii) Actions and milestones leading to compliance with the
effluent limitation.
   (D) The discharger has prepared and is implementing in a timely
and proper manner, or is required by the regional board to prepare
and implement, a pollution prevention plan pursuant to Section
13263.3.
   (k) In lieu of assessing all or a portion of the mandatory minimum
penalties pursuant to subdivisions (h) and (i) against a POTW
serving a small community, as defined by subdivision (b) of Section
79084, the state board or the regional board may elect to require the
POTW to spend an equivalent amount toward the completion of a
compliance project proposed by the POTW, if the state or regional
board finds all of the following:
   (1) The compliance project is designed to correct the violations
within five years.
   (2) The compliance project is in accordance with the enforcement
policy of the state board.
   (3) The POTW has demonstrated that it has sufficient funding to
complete the compliance project.
   (l) The Attorney General, upon request of a regional board or the
state board, shall petition the appropriate court to collect any
liability or penalty imposed pursuant to this section.  Any liability
or person who fails to pay on a timely basis any penalty imposed
under this section shall be required to pay, in addition to that
liability or penalty, interest, attorneys' fees, costs for collection
proceedings, and a quarterly nonpayment penalty for each quarter
during which the failure to pay persists.  The nonpayment penalty
shall be in an amount equal to 20 percent of the aggregate amount of
the person's penalty and nonpayment penalties that are unpaid as of
the beginning of the quarter.
   (m) Funds collected pursuant to this section shall be deposited in
the State Water Pollution Cleanup and Abatement Account.
   (n) (1) The state board shall report annually to the Legislature
regarding its enforcement activities.  The reports shall include all
of the following:
   (A) A compilation of the number of violations of waste discharge
requirements in the previous year.
   (B) A record of the formal and informal compliance and enforcement
actions taken for each violation.
   (C) An analysis of the effectiveness of current enforcement
policies, including mandatory minimum penalties.
   (D) Recommendations, if any, necessary for improvements to the
enforcement program in the following year.
   (2) The report shall be submitted to the Chairperson of the
Assembly Committee on Environmental Safety and Toxic Materials and
the Chairperson of the Senate Committee on Environmental Quality on
or before March 1, 2001, and annually thereafter.
  SEC. 3.  (a) Mandatory minimum penalties shall not be assessed
pursuant to subdivision (h) or (i) of Section 13385 of the Water Code
for any discharge occurring on or after January 1, 2000, if all of
the following
requirements are met:
   (1) The discharge is limited to groundwater from construction
dewatering and storm water runoff during construction.
   (2) The discharge is regulated by a time schedule order or a cease
and desist order issued by the Los Angeles Regional Water Quality
Control Board and is subject to interim numeric effluent limitations.

   (3) The discharge is in compliance with the interim effluent
limitations in the time schedule order or cease and desist order.
   (4) The time schedule order or cease and desist order requires
that the discharge comply with the numeric effluent limitations in
the waste discharge requirements applicable to the discharge by no
later than January 1, 2002.
   (5) The time schedule order or cease and desist order includes a
protocol that ensures that all reasonable and immediately feasible
actions to reduce noncompliance with the waste discharge requirements
applicable to the discharge have been taken.
   (b) This section shall remain in effect only until January 1,
2002, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2002, deletes or extends
that date.
